Should I Bargain for the kids?

iVillage Member
Registered: 11-03-2006
Should I Bargain for the kids?
20
Sun, 04-15-2007 - 8:11pm

Everyone I talk to, including our old marriage counselor thinks that stbx's fight for joint physical custody is all about child support and has nothing to do with the kids. His suggested arrangement which would have the kids sleeping at his house on week nights but I would still pick them up from school, do homework, music practice and run them to all their activities and then I'd have them on the weekend shows clearly that he has no intention of being an involved parent. But, he's going to fight for the kids to avoid child support.

I'm thinking I should just offer to waive child support in return for full custody of the kids and conditional visitation with the condition being NO drinking when he has the kids. I live in a county that defaults to 50/50 custody and I pretty much have to prove him unfit to get custody. Plus we have a father friendly judge. My worst case is he gets the kids half the time and their homework isn't done, they don't get to their activities and they aren't properly supervised just so he can avoid child support. My kids will pay if that happens.

His mom and brother have offered him a "blank check" to fight me for custody of the kids. His plan is to drag this out until I'm broke and have no choice but to give him the kids half the time so he can avoid child support. I'm thinking that I could spare myself a lot if I just waived child support now in exchange for full physical custody.

I figure I'm not going to see a cent anyway. If I can't prove him an alcoholic (he's cleaned up his act and is stalling on the testing so he'll probably pass) he's going to get joint physical anyway and I won't get a cent. My bills really don't go up if I have the kids 50% of the time or 75% of the time but if I have them 75% of the time, their needs get met.

Am I nuts for thinking of making this offer this early? I'm so afriad he'll win joint physical and then there is nothing to stop him from drinking around the kids. Once he's declared fit, he can do whatever he wants around the kids. Unfortunately, drinking around your kids is not a crime. IMO, regardless of him cleaning himself up now (money is a VERY STRONG motivator for him), it's only a matter of time before he's back to being the miserable drunk I know him to be.

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Avatar for momtojoeybear
iVillage Member
Registered: 03-26-2003
Sun, 04-15-2007 - 9:33pm

Only you can decide what is right for you and your situation, but have you considered at least having the drinking, etc included in the settlement agreement, so that it is in writing ~somewhere~?

I have a section, which is derogatory remarks/wholesome environment which states, "Neither party will make or allow anyone else to make derogatory remarks about the other parent while the child is in his or her custody. Both parties will provide a safe, wholesome environment for the child. Neither party will expose the child to illegal drug consumption or excessive alcohol use while in his presence. Neither party will smoke cigarettes, cigars or pipes in the presence of the child."

Then I have a contempt section, The parties acknowledge that failure to abide by the povisions of this agreement could require one of the parties to file a contempt action in Superior Courth. In the event that one party is in contempt of this agreement, the offending party shall be responsible to pay all attorney's fees and court costs incurred by the non-offending party in bringing the contempt action...

Child support isn't for you... it is for your children. It is their right... I don't know that I would let him get away with it... but that's just my two cents... good luck with your decision...

iVillage Member
Registered: 11-03-2006
Sun, 04-15-2007 - 9:45pm

The problem is that he's prepared to fight tooth and nail for 50/50 physical custody so he can avoid child support. He has no intention of actually being a 50% parent. He just wnts the kids with him half the time so he doesn't have to pay anything. And his mom and brother have deep pockets to make that happen. He has them convinced that I'm not looking out for the best interest of the children, I'm just a greedy witch who wants his money.

The problem is, he looks good fighting for 50/50 physical custody. That's what this judge wants to see. Dedicated dads fighting for their kids (our judge is pro father's rights). Only he doesn't care about the kids. He just cares about the money. And if he gets the 50/50 arrangement he wants, he won't have to pay a dime. Money is a STRONG motivator for him. He thinks it's as important to everyone else as it is to him which is why he's going around telling everyone who will listen what a greedy witch I am and how I don't really want the kids, I just want his money.

I outearn him by enough that we had to impute income to him to prevent me from having to pay him in a 50/50 arrangement. (He COULD earn a lot more than he does but choses not to. He prefers a job he can wander into at 10:00 AM after drinking all night to one that requires him to put in face time but would pay more. He, LITERALLY, has an agreement with his boss that the boss won't ask about his hours and he won't ask for a pay raise.)

iVillage Member
Registered: 11-28-2006
Sun, 04-15-2007 - 9:58pm

I presume your lawyer has plenty of experience with your state and even with your judge -- I would listen closely to your lawyer on this. What is his/her experience in cases like this? If you can survive without the child support, maybe you offer it up, but only if your lawyer thinks it is the answer.

I know one poster here drafted her agreements out of court and when they submitted them to the court for a rubber stamp -- the court said, "nope, your spouse has to pay you CS," despite their agreement otherwise (she had her reasons to waive cs). So, maybe you could waive it, get full custody and the court would still award you some CS. Don't know.

Sorry this is so so hard!

M

iVillage Member
Registered: 04-19-2006
Sun, 04-15-2007 - 10:03pm

I agree that only you can determine what is worth fighting for. I further agree that the child support is for your children and not to give up on it too quickly.

Could the marriage counselor testify on your behalf?

I can't imagine even a pro-father's right judge wouldn't see past the suggested arrangement having you taking care of the kids and going to his house to sleep. That doesn't sound like custody. Wouldn't he have to make arrangements for the children's care on the days he has custody?

iVillage Member
Registered: 11-03-2006
Mon, 04-16-2007 - 5:45am

The marriage counselor can only testify on my behalf if stbx signs a waiver allowing him to do so.

As to cs being for the kids, I know that BUT, he'll fight, with mama's money, to get the kids half the time anyway to avoid it so I'm probably not getting anything anyway. If he gets the kids half the time, they'll be ill supervised half the time, not get their homework done half the time and dealing with his drinking when it starts back up, and it will, half the time. stbx does not believe kids need to be supervised. The first time he got caught leaving them alone to run to the store for cigarettes was when they were something like 5 and 3 or maybe 6 and 4. He's tried to get me to go out to the bar after they've gone to bed claiming we don't need a sitter because they're sleeping.

His motivation is to avoid CS and he will do whatever it takes to do that. I'm in a county that starts from 50/50 with a fathers rights judge. I have two strikes against me going in. He's cleaned up his act WRT the drinking, which he always does but not normally to this extent after a crisis caused by his drinking so he may manage to pass this test. If he does, that's my third strike. He'll get 50/50 and no child support and my kids will be bounced back and forth like rubber balls that have been divvied up in a divorce.

I'm going to run this by my lawyer today. I figure I'm not getting CS anyway so I'm not losing anything really. I'm gaining the time to continue to do all the things I do for my kids now and giving my kids a place they can root called home instead of making them visitors in two different homes.

I have a niece and nehphew in a 50/50 arrangement like stbx wants and they're miserable with it. They contstantly switch from one home to the other but nieither of them is THEIR home. My SIL can work with her ex to make sure things get done, I can't. Mine thinks that parents shouldn't have to be involved in schools and if a kid doesn't do their homework there should only be consequences at school and he doesn't think pre teen kids need any supervision. In his mind, they're raised and no work at all.

Avatar for momtojoeybear
iVillage Member
Registered: 03-26-2003
Mon, 04-16-2007 - 6:26am

Forgive me here, but you are sounding as if you feel powerless in this situation--and you are not... you and your children both have rights... as does your stbx... but he cannot have everything the way he wants it, just because that's what he wants... that's not the way a divorce works. Both people typically give up somethings during the creation of the settlement agreement.

You said that you have two strikes against you--and his cleaning up his drinking would be the third... what strikes do you feel you have? And what can your attorney do to help you with those strikes?

Knowledge is power... right now he has the power because you seem, through your posts, scared of what he's going to do... I hope that your meeting with your attorney today provides a lot of insight as to what your rights are... what your children's rights are...

When my xh and I were discussing our settlement agreement, he claimed that he was going to give me 100-200/month for CS... I told him that he was wrong and it would be much more than that--I then got to hear the sob stories about how he was going to have to live in a cardboard box on the corner... blah, blah, blah... bottom line, he's paying 500/month, which is more than his original quote, and less than mine (the reaction to his quote)... what do your state laws say as far as CS is concerned?

Am thinking of you--let us know how your meeting with the attorney goes!

*hugs*

Julie

iVillage Member
Registered: 03-19-2003
Mon, 04-16-2007 - 9:02am

Joint physical custody doesn't mean that you do all the work... and he gets to sleep in the same house with them.... it really means you both share in parenting time... and he'll have to pull his weight for his part.


Karen ~ wildlucky4me ~

iVillage Member
Registered: 11-25-2003
Mon, 04-16-2007 - 9:05am

This sucks and I empathize with you.

Sadly, your stbx is a reckless individual with respect to your kids. One of my axioms regarding family court is that the more reckless of the parents sets the tone for the course of legal actions.

Its time to sit down with your lawyer and talk in terms of reality, not grand plans. Get your lawyer to tell you what usually happens, likely outcomes, and so forth.

There are two things to consider:

First, what is the "typical"/status quo arrangement in your state/county. Your lawyer can tell you that. Unless one of you two parents demonstrates utter parental incompetnence (jail time, drug dealer, pattern of violence), the court will attempt to implement this scheme.

Second, since stbx is acting in a reckless manner, you can expect a nasty, drawn out long-time-scale and expensive fight. Eventually you will end up with a settlement looking an awful lot like the "status quo" arrangement for the state/county you live in .

I take exception with some of the other comments made -- I think people in your position are very powerless, unless you are as willing to be as reckless as stbx. He's willing to gamble with the children's well being. He's also gambling that you are NOT willing to gamble with their well being. Sadly, his behaviour is acceptable in the eyes of the court.

I apologize to the other readers and contributors of this board if this contradicts your posts or opinions. I have been disappointed by family court time and time again. My opinion is formed by my experience, and I have a poor opinion of the family court system. Its like swim racing in a pool of radioactive plutonium -- you may be able to win a race, but the process will kill you. Its best to avoid it.

Your can parade a steady stream of expert witnesses before the court and every one of them will swear up and down that you are a better parent, he should have limited contact, he's a drunk, etc etc etc, . And in the end, the court does not care, and you have spent a huge amount of money to no ends. Unless stbx has spent jail time because of his drinking, expert witness opinions are worthless!

You can put all of the "behaviour" clasues you want into the agreement/parenting plan, but they are only as enforceable as you make them. For example, you put in a "no derogatory comments" clause. And the ex makes a bad coment -- enforcement requires objective evidence that he made the statement, and you need to sue him, ie, a new court case. In the end, all he has to do is say "I screwed up, I'm sorry, and it won't happen again", and the judge will dismiss the case. If it occurs on a chronic basis, you will have to pursue each and every incident with a new court case, and maybe a judge will recognize there's a problem here. Or the judge may take exception with you for littering family court with lots of new suites and penalize you! It takes time and money to enforce behavour clauses, time and money not spent on the kids.

Until stbx wants to do something about his drinking, or until stbx ends up in jail because of his drinking, the courts will stay out of the entire issue.

If you are going to remain NOT RECKLESS -- get this settled as fast as you can. The stress of a protracted and nasty court battle sucks the life out of every one involved, including you and your kids. If you have to surrender child support and you can get by without it, just let it go. How much life-sucking stress are you willing to subject you and your kids to ?

If you are willing to be as RECKLESS as stbx, counter-offer that he has full custody or "shared parenting" and he's the custodial parent. Which means he's who is required to get them to all of their events/activities/appointments. And you see them on the weekends. Never offer to help transport the kids. Yes, the children will suffer greatly, yes, they'll miss their events and appointmentes. But stbx has all of the responibility. This option should scare him to the point that he soils himself.

Good Luck and let us know what's happening.

iVillage Member
Registered: 09-01-2006
Mon, 04-16-2007 - 10:01am

That is more or less what I did (or am in the process of doing). My STBX is also extremely motivated by money and wanted 50% custody so that he wouldn't have to pay as much child support. He hates the thought of handing over money to me. So...... what I did was I credited him with a 60/40 split (I live in Canada and as long as he has the kids minimum 40% of the time, then it pays out the same as though he has them 50%). I strongly doubt that he will have them 40% of the time, but I don't really care. He is happy with this arrangement. We struck this deal with the mediator, when I took it to my lawyer he felt I was selling myself short. Fair enough, but I do not want my children to be pawns in this collossal mess. I am taking a small financial hit, however items that would normally be covered in 50/50 child support payments, STBX will have to contribute additional money such as extra curricular, clothing etc (a 50/50 split assumes that he is equally contributing to those items).

This works for me - in fact - I am ecstatic. Mind you I have a decent job so I have the luxury of being able to let some of that money go - I know not everyone is in that same position. I feel, that as long as your children are not suffering in any way, then I say go for it. I am having language written into our agreement that if he totally drops the ball on his end of the custody, then all bets are off and we will default to guideline support - which is very much in my favour. So there you have it, a wee bit of incentive for him to agree to my suggested arrangement, plus a wee bit of incentive for him to hold up his end of the bargain.

Rose

Rosecolouredspecs
iVillage Member
Registered: 08-17-2001
Mon, 04-16-2007 - 10:09am

When XH and I were hammering out a separation agreement, the lawyer told me I was entitled to CS ($550/mo) AND alimony($450/mo). I knew how much XH made and how much the house cost to keep up. I knew how much I made and how much my new house was going to cost. I waived alimony and it's written in our agreement that I waived it. I only took $300 in CS, but XH was responsible for paying for private school and medical insurance, as well as college. I figured that was reasonable because I just wanted everything signed, sealed, and delivered. I didn't want him saying he was poor because he had to give me all his money. Sometimes I regret that move because he'll often say he can't afford to buy Rosie a new pair of boots, but they own every single cheesy Barbie DVD ever made. Gracie has more Barbies than I can keep track of, and since I detest that doll, I make sure they all stay at his house. CS is based on niber of overnights AND income. I know people who have their kids more than half of the time and still end up paying CS because the Xspouse makes so little.

As for the safety of the kids, I'll tell you what my lawyer told me when I confided in her that XH had been diagnosed with clinical depression and I was nervous about him doing things that might endanger them. She told me that as my lawyer, she had to tell me that I could not refuse him access to the girls. Then she told me that as a divorced mother herself, she'd never let her children go with their father if she thought they wouldn't be safe. Then as my lawyer again, she told me that if I honestly feared for their safety (physical OR emotional) and I didn't let them go with him that she'd back me up afterwards in court if necessary. I'd ask your lawyer, hypothetically, if he'd back you up on that.

It really is up to you. It was worth it for me, but I'd NEVER opt for no CS.......

~calla~  mom to rosie and gracie

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